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National Labor Relations Board v. Burkart Foam Inc.

decided: June 14, 1988.


Petition for Enforcement and Review of an Order of the National Labor Relations Board, No 14-CA-17995.

Harlington Wood, Jr., and Richard D. Cudahy, Circuit Judges, Hubert L. Will, Senior District Judge.*fn*

Author: Wood

HARLINGTON WOOD, JR., Circuit Judge.

District 111, Lodge 1076, International Association of Machinists and Aerospace Workers, AFL-CIO (the Union) represented the employees at Burkart Foam, Inc. (Burkart) during 1984 and 1985 when the employees were negotiating for a new contract with Burkart. The Union initiated unfair labor practice charges against Burkart, alleging that Burkart had violated sections 8(a)(1) and (5) of the National Labor Relations Act by refusing to sign the collective bargaining agreement and by refusing to provide the Union with information regarding Burkart's employees. Following a hearing, the Administrative Law Judge (ALJ) determined that Burkart had committed the alleged violations and recommended a remedial order. The National Labor Relations Board (the Board) affirmed the ALJ's decision and adopted the recommended order. The Board now seeks enforcement of its order. Burkart cross-petitions for review of the Board's decision and order.


Burkart manufactures and sells urethane foam at its facility in Cairo, Illinois. Since 1965, the Union has represented Burkart's production and maintenance workers in contract negotiations. The last of these contracts expired on September 4, 1984.

Negotiations for the new contract began in August 1984. David Garner was the chief spokesman for the Union. Burkart retained John Noble, Jr., a partner at the Chicago law firm of Katten, Muchin, Zavis, Pearl & Galler, to negotiate the new contract with the Union. Burkart assigned its personnel manager, Lawrence Davis, to assist Noble during the negotiations.

The parties met several times during late August and early September to discuss various proposals. At a meeting on September 1, Burkart presented a written proposal, complete except for the final wage proposal. Burkart proposed that the contract would be in effect from September 4, 1984 until September 5, 1987. On September 4, Burkart presented its final wage proposal to the Union. Burkart proposed a ten percent wage reduction in 1984, a five percent increase from the reduced wage in 1985, and an additional seven and one-half percent increase in 1986. These wage proposals did not specify an effective date, but included a statement that the wage rates would be "effective upon ratification."

Garner presented Burkart's complete proposal at a membership meeting on September 4. The members voted to reject the offer, and the workers subsequently went on strike on September 5.

On October 31, the parties met with a mediator from the Federal Mediation and Conciliation Service. At this meeting, Noble announced that Burkart had not changed its position from the September 4 proposal. Garner responded that the Union's position had changed in one respect: upon settlement of the strike, the Union wanted Burkart to discharge the workers it hired to replace the strikers and to recall striking employees by seniority. Noble replied that Burkart would not agree to that demand. Neither party altered its position, and the strike continued.

On February 7, 1985, the parties met again at the insistence of the mediator. Burkart rejected several proposals by the Union, including the Union's request that Burkart discharge the replacements and reinstate the striking workers. Noble stated that Burkart's proposal of September 4 would not be changed "one iota." The bargaining session ended with the negotiations again at an impasse.

On February 10, the Union's membership, by a vote of 95-67, again rejected Burkart's September 4 offer. Four days later, however, Garner received a petition signed by 130 Union members urging him to accept Burkart's offer and call off the strike.

On February 20, Garner and two other Union representatives met with Davis, Burkart's personnel manager. (Noble was hospitalized during the latter part of February and was unable to meet with the Union.) Garner announced that the Union unconditionally accepted Burkart's September 4 proposal as it was offered at the February 7 meeting.

Garner presented Davis with a document purportedly outlining Burkart's contract proposals. Garner and Davis checked Garner's document against Davis's notes from the meetings on September 1 and September 4 to ensure that the draft accurately reflected Burkart's offer. The two men found several passages that did not match Davis's version of the offer. Garner changed his draft to correspond to Davis's notes, and both men initialed the changes. Garner's draft listed September 5, 1984, September 5, 1985, and September 5, 1986 as the effective dates for each annual adjustment in the rate of pay. Garner and Davis did not discuss these dates, and did not modify the effective dates listed on Garner's draft.

As the meeting concluded, Garner gave Davis a letter dated February 20, 1985. The letter stated that the Union unconditionally accepted Burkart's final offer as discussed in the September 4, October 31, and February 7 meetings between the parties. Garner's letter also requested a list of the permanent replacements that Burkart had hired and a separate list of strikers who had returned to work during the strike. In addition, the letter stated: "The employees will return to work on Thursday, February 21, 1985. Those not put to work will be on the preferential recall list."

After reading the letter, Davis told Garner that the strikers could not return to work because Burkart had replaced them. Davis also explained that he could not sign any agreement unless Noble approved it.

Following the February 20 meeting, Garner called Davis several times, trying to set up a meeting to sign the agreement. On February 22, the Union picketers changed their signs from "On Strike Machinists Union 1076" to "Employer Has Refused To Sign The Agreed Upon Contract." Finally, on February 27, Garner wrote to Davis, reiterating the Union's desire ...

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